No Easy Answers

To the following piece, I say bravo! I've said the same on many occasions, although not nearly as well as Mr. McCarthy. "It's legal" is an assertion and question that involves a label, and as Andrew points out, the label is typically tied to FISA, rather than being tied to the Constitution.

I would add another disappointing thing, and that is a willingness to reach the ultimate conclusion, without having facts upon which to judge the actions of the administration.

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There are three terribly disappointing things about the current controversy over President's wartime authorization of the National Security Agency to conduct warrantless surveillance of communications involving the enemy overseas which cross U.S. boundaries. The first is how politically polarized we are ­ such that the debate is much more a referendum about the Bush administration than about the quite distinct issue of presidential power. Second, perhaps of necessity, is that our analytical prism is legality (a subordinate consideration in national security terms, but one the many complexities of which are grist for irreconcilable disagreement) rather than the far more consequential practicality (i.e., does the program really make us safer, something that probably cannot be known without compromising operational details).

Regrettably, this priority inversion is only added to, however marginally, by addressing the third difficulty, the subject of this essay, which is the issue's framing as whether the President has placed himself "above the law." This question is generally, and misleadingly, posed with the 1978 Foreign Intelligence Surveillance Act (FISA) as the frame of reference.

In point of fact, Congress frequently enacts laws that impinge on the prerogatives of other actors ­ whether individuals, states, courts, or the executive. But none of the latter imperiously puts itself "above the law" merely by the unremarkable happenstance of being at loggerheads with the legislature in a system the very basis of which is divided (and thus competing) powers. It is the Constitution, not the handiwork of Congress, that is the law for these purposes. And it is that law to which Congress, too, is subservient. Indeed, when a legislative enactment undermines the Constitution's structure, that is a case of Congress, if anyone, placing itself above the law.

Such loaded contentions, of course, generate much more heat than light. After all, Congress is rarely wholly off the reservation when it legislates, and the same can be said for virtually all presidential initiatives. There is almost always some legitimate prerogative catalyzing the actions of the political branches. It is part of the genius of our Constitution that the Framers did not define the ultimate boundaries of executive and legislative power. They gave us, instead, a flexible system, capable both of maximizing freedom and meeting threats. Both branches require the other's cooperation if they are to function at all, they have functions that overlap, and they collaborate or compete based on the circumstances.

The Framers also recognized (as the great political philosophers who influenced them had recognized) the difference in kind between the realms of domestic regulation and foreign affairs. The body politic is a consensual political community, in which government has a relative monopoly over the use of force, free citizens are vested with various rights and presumptions, and courts are interposed, in part, to inhibit executive overreach. In this domestic realm, Congress's enumerated powers are extensive and broad. Yes, the President has robust police powers, but no one could credibly contend that Congress acted illegitimately in imposing standards beyond the Fourth Amendment threshold for criminal wiretaps.

But the body politic's interactions with the rest of the world are another matter entirely. For all our sonorous rhetoric about an "international community," there is no global political unit. It's a jungle out there. Nations and factions (including transnational terror networks) all claim the right to use force ­ at times, existentially threatening force. The fluid, unstable circumstances are not sensibly given to antecedent, positive laws. And while our citizens are presumed innocent and entitled to privacy in our domestic courts, the presumption must favor government in the international sphere, where its failure against our enemies would endanger all of our civil liberties.

It was in this connection that the Framers created an energetic executive. Not simply one who would be commander-in-chief of the armed forces (the power most often highlighted in the current debate), but one in whom all executive power is vested, and on whom alone is imposed the duty to "preserve, protect, and defend the Constitution." The Supreme Court has thus long recognized, for example, the "delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations." At the core of that plenary power is the gathering of foreign intelligence ­ even in peacetime, let alone when our nation is at war against an enemy that has already catastrophically struck the homeland and makes no secret of its commitment to do so again, with the very real possibility of incalculable deadliness.

In the current debate, we are talking not merely about foreign intelligence but about the most ominous category of such intelligence: wartime communications crossing U.S. lines involving an enemy plotting to attack us domestically. Were we able to fix the location from which al Qaeda operatives were calling into the United States, our military would need no judge's imprimatur to kill or capture them. The thought that the executive branch nonetheless needs a judicial warrant merely to listen to what is being said is anomalous to say the least.

An interpretation of FISA that would restrict the power of the President to design a foreign intelligence collection effort that is, in his judgment, necessary to create an early warning system against a (very likely) enemy attack would be unconstitutional. Congress unquestionably has the authority to prescribe rules for government, but it is not a limitless power, and it cannot reduce the core of presidential power created by the Constitution. Congress can declare war, and it can surely choose whether to fund wartime operations, effectively halting war if it so chooses. But it cannot conduct war. That is an executive function. The penetration of enemy communications is as rudimentary an aspect of war-fighting as deciding when to attack, which targets to hit, or what enemy operatives to detain.

Concern over executive actions that impinge on our liberties is always appropriate. If Congress believes the President has drawn the line improperly with the NSA program, it has its remedy ­ it can forthrightly defund the program. An informed electorate can then render its judgment at the ballot-box as to which resolution of the tension between liberty and security it prefers. That is how our constitutional democracy is supposed to work. Neither constitutional democracy nor national security is well served, though, by demagogic claims that the President has placed himself above the law.

Andrew McCarthy was an Assistant United States Attorney in the Southern District of New York from 1993 to 1996, during which time he led the prosecution of Sheik Omar Abdel Rahman and his followers in connection with the 1993 World Trade Center bombing and a conspiracy to attack other New York City landmarks. He is a recipient of the Attorney General's Exceptional Service Award and the Distinguished Service Award. He is currently a Senior Fellow with the Foundation for Defense of Democracies.

Published in the ABA's March 2006 National Security Law Report
http://www.abanet.org/natsecurity/nslr/aba_security_law.pdf